Monday, May 31, 2010

I like when things boil down to one or two simple premises. That's one of the great attractions of libertarianism. It has one simple premise--that people should be free to do what they want so long as it does not cause harm to another person or his property.

But of course herein lies the difficulty--how do you define "harm" and "property"?

Defining property seems obvious, but it isn't. For example, it used to be the case that your real property rights extended down into the center of the earth and up into the heavens. But now that's not that law, otherwise modern flight would be impossible. So now your property right goes up on the air a distance, but not forever.

And it's not always clear what it means to "own" a piece of property. For example you cannot do whatever you want on your property. If you mix some chemicals on your property that smell horrible and that waft onto the neighboring property, you most likely have gone beyond your property rights and committed the tort of nuisance. On the other hand, you generally can't move next to a pig farm and then win a nuisance claim against the farmer for the smell.

One thing that seems kind of obvious is that when you own property you can keep people off of it. One Supreme Court case, Kaiser Aetna v. United States dealt with whether excluding ships from transversing private property is a property right, such that taking that right requires compensation under the constitution. The court held that compensation was, in fact, required. Except someone can have an access easement over your property, and you can still "own" the property in some sense. Depending on the type of easement, the owner can modify the access, maybe reroute the access, pave the road, leave it dirt, and make other changes, as long as the easement holder can cross the property.

In a condominium, the unit owners usually "own" the exterior of the condominium as tenants in common--meaning that each owner has an undivided interest in the exterior of the property. It's kind of like how a husband and wife might own a house 50/50, but no one owns a specific "half" of the house. Except do the unit owners actually own the common elements? The owners have no power over the common elements. Instead the Association has the power to decide what is done with the exterior--when to paint, what color to paint, when to repair, how to repair, when to replace, who to hire, etc. And the Association is a fiction of law. Really, its just 5 member board elected from owners. In what sense then do the owners "own" the exterior when the association has all the power to make decisions? And who is the "association"? Three of the 5 directors that control the board?

Here's another interesting post about how determining whether something is a externalities depends upon property rights. To some extent it also implies that property rights depends upon who has gotten there first. Not sure I'm convinced with the particular example of pollution because it seems to me like shortening a person's life through pollution is invariably an externalities. Still, there is this principle and property law where property rights frequently turn on who gets to the "property" first. One of the first property cases you read in law school is about two guys chasing a fox, where the first guy chases the fox for most of the time and tires it out, but the second guy actually killed it and carried it off. The second guy was "first" to the fox. Same with nuisance law. The first person in a location generally has the right to continue the activity they are doing. Again, you generally can't move next to a pig farm and then win a nuisance claim against the farmer for the smell.

This is all a long way of saying that ownership of property and property rights really are more a construct of law than anything else. We have a sense of what it means to "own" property, but that definition changes from circumstance to circumstance depending on expectations and policy considerations embedded in the law.

So this was a long windup for what I wanted to get to, which is intellectual property. Two of the blogs I've started reading are against it. Some argue that eliminating copyright makes sense from a libertarian perspective, because it maximizes individual freedom:

The copyright hassles of Blaise Faint (Independent Weekly 2/1/95) [2010 note: alas, I no longer recall what Blaise Faint’s copyright hassles were] illustrate how obsolete intellectual property rights have become in the electronic age, when information can be duplicated and transmitted a hundred times over in the blink of an eye.

Intellectual property rights – copyrights, patents, and the like – have always stood on dubious ground, both ethically and economically.

Don’t get me wrong. As a wild-eyed free-marketeer, I’m a fan of property rights in general – probably more so than most people. And at one time my enthusiasm for property rights extended to intellectual property as well.

But ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis – like the “right” to own slaves – are invalidated. Intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), the on what grounds can you be prevented from using it reproducing it, trading it? Is this not a violation of the freedom of speech and press?

Me: of course when the constitutional power to protect copyright pre-exists the first amendment. And the First Amendment did not explicitly repeal the protection of copyright. So unless this is just a argument based on what freedom of speech should entail, I don't think this is what the First Amendment was intended to accomplish.

It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over those the originator has no legitimate sovereignty. You cannot own information without owning other people.

As for the economic case for property rights, that case depends on scarcity, and information is not, technically speaking, a scarce resource. If A uses some material resource, that makes less of the resource for B, so we need some legal mechanism for determining who gets to use what when. But information is not like that; when A acquires information, that does not decrease B’ share, so property rights are not needed.

Of course an MP3 file of a song can be reproduced infinitely without any problem. However, it takes humans real time to produce a song. And people's time is scarce. Increases in productivity and standard of living are due to people using their time more effectively. If the true benefit to the society of a intellectual property is not internalized to the creator of it, then there will inevitably be less of that property created than is optimal.

Some will say that such rights are needed in order to give artists and inventors the financial incentive to create. But most of the great innovators in history operated without benefit of copyright laws. Indeed, sufficiently stringent copyright laws would have made their achievements impossible. Great playwrights like Euripides and Shakespeare never wrote an original plot in their lives; their masterpieces are all adaptations and improvements of stories written by others. Many of our greatest composers, like Bach, Tchaikovsky, and Ives, incorporated into their work the compositions of others. Such appropriation has long been an integral part of legitimate artistic freedom. (In any case, whatever protection innovators may need can be achieved through voluntary means, such as contract or boycott; there are many successful historical examples of this kind of remedy in copyright cases.)

First, just because great artists made great art in the absence of copyright does not mean that copyright would not improve things. The question is whether those artists would have created even more or even greater art with copyright protections in place. Or whether there might have been more artist creating art, but because they knew the benefits of their creation would not be internalized, they did something else.

Also, historically, there were ways to limit the spread of a piece of work, and therefore, better internalize the benefits of it. At the time of Mozart, if you wanted to enjoy his symphony, you couldn't download an MP3; you had to go to the symphony. The benefits of intellectual property were internalized, even in the absence of property.

The argument that copyright may stifle creativity is the strongest. But as the movie Avatar demonstrates, even with copyright, we have plenty of story borrowing. And copyright does not last forever, (although it is extended every time the copyright on Steamboat Willie is about to expire). This is where knowing IP law would be helpful. But I understand you can still use someone else's copyrighted material if you do something transformative with it. You can still do parodies of copyrighted material. You can use those materials for literary criticism. There is a fair use exception to copyright. So I think Shakespeare still could write his plays today because Copyright protections are not absolute.

Protect copyright through contract? I doubt that will work. Once a electronic file gets out, there is no way to trace it back to the original purchaser who promised not to share it. And I doubt Boycott would be effective enough to properly internalize the true value of a product. Think file sharing.

Though never justified, copyright laws have probably not done too much damage to society so far. But in the Computer Age they are now becoming increasingly costly shackles on human progress. Consider, for instance, Project Gutenberg, a marvelous nonprofit effort to transfer as many books as possible to electronic format and make then available over the internet for free. Unfortunately, most of the works done to date have been pre-20th century – to avoid the hassles of copyright law. Thus, copyright laws today are working to restrict the availability of information, not to promote it. More importantly, modern electronic communications are simply beginning to make copyright laws unenforceable, or at least, unenforceable by any means short of a government takeover of the internet – and such a chilling threat to the future of humankind would clearly be a cure far worse than the disease.

Intellectual property rights are a luxury we can no longer afford.

Copyright restricts project Gutenberg printing books, because if the second someone wrote a book it appeared on project Gutenberg for free, many of the books people write today would not be written at all.

I'm not convinced. But there are more thoughts by the same blogger here.

There is one argument against patent law that I do find somewhat persuasive: the gridlock argument. Each technological innovation unintentionally infringes like 100 different patents. And there is no good way of tracking down each patent to make sure you are not violating one. And even if you did track down all of them, negotiating with each patent holder means the transaction costs of innovating legally are probably not cost effective. Podcast on the book, Gridlock Economy, here.

On the whole though, while I think IP law should be reigned in, we still need it to encourage innovation.

Sunday, May 30, 2010

I think this video illustrates a paradox--what' I'll call the paradox of capitalism. On the one hand, capitalism is the best system for innovation and progress. On the other hand, if we all had a big-picture appreciation for everything that capitalism does for us, then we might lose our drive to innovate. Our impatience with the capitalism's innovation from yesterday is the engine that makes capitalism go.

There's a tendency to think that, because we don't appreciate our progress, it doesn't really occur, or it's not that important. I guess you could argue that if our progress doesn't really bring us satisfaction, what's the point? But of course our lives are longer, healthier, we have more time for art and hobbies and family.

Wealth isn't just about stuff. It's about quality of life.

And it doesn't take very long to get to the point where a one-time luxury becomes the standard. The end of this terrific podcast on globalization demonstrates how many "luxuries" from 100 years ago are standard necessities today.

Which also makes me think, what of the things that we consider unnecessary luxuries today are going to be common place in 20 or 30 years? And is it really a fault to be on the cutting edge of that progress? Looking back in time, should we denounce the first people to have running water in their houses as materialistic people craving an unnecessary luxury?

2.

As you know, originalism is my preferred modality of constitutional interpretation. It, however, is far from perfect. One difficulty with originalism is the legitimacy of the constitution itself. Usually you can argue for originalism without really tackling this problem, because almost all Americans argue from the premise that the constitution is legitimate.

There are some arguments against that view, however (note: I admit, I haven't read all the material at the link). I wanted to focus on two: 1. No one today agreed to the constitution, and, therefore, no one is bound by it, and 2. only a small subset of people (white male property owners) could actually exercise the franchise in 1787 so as to consent to the constitution then too. Thus, the constitution was not democratically enacted and does not bind future generation who have not assented to it.

I wonder, does the first argument mean that every time there is a birth (or a person reaches adulthood) the constitution must be re-ratified? Or we must periodically re-ratify the constitution to ensure that it still enjoys super-majority support? Does the amendment process not account at least in part for the differing desires of future generations?

Also, it seems to me this argument applies to all law. The homocide laws of today invariably were adopted before many if not most of today's voters were of the age to vote. Does that mean that all law makes all future generations slaves? (but then, we are reading from anarchist literature.)

And even if everyone was allowed to vote, does that mean that the constitution is more legitimate? If we are following a principle of non-coercion, even if 80 percent vote for the constitution, the government will still coerce the other 20%. The other 20% are still enslaved.

This Spooner guy from the link and the guy that blogs at Austro-Athenian Empire both seem to think that contracts are the only legitimate way to bind human behavior. Contracts require consent of all people. No contract is capable of coordinating any large number of people if that is the requirement. The transaction cost is through the roof.

Also, who is going to enforce contracts?

3.

The Oregon construction defect litigation bar is a pretty small group of the same players. One of the big players, Jack Levy, groped another female lawyer at party. The story has been big gossip in the construction legal community for some time. Now there's a story about it at the Oregonian's website. (Oregon's biggest paper.) 50 comments so far.

The victim of the story is described as "a litigation associate with another firm, who represents homeowners associations." I can only think of 4 attorney's that meet that description. But I know who filed the complaint. Probably if you know the construction defect bar well enough to know that, you also already know who the victim is.

Funniest line, though it probably shouldn't be: "She said she was moving down the hall during the party when Levy firmly grabbed her rear."

I also like this line: "The bar initially declined the complaint but revived it after the complainant alerted police." Snap! But I wonder if the Bar didn't get it right the first time.

(1) violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation that reflects adversely on the lawyer’s fitness to practice law;

(4) engage in conduct that is prejudicial to the administration of justice;

(5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate these Rules or

other law; or

(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

There's no professional rule against groping opposing counsel. Groping is criminal, but it doesn't really reflect on honesty, trustworthiness (eh, maybe), or fitness as a lawyer, except maybe the part where Levy goes to give the lawyer a hug and groped her again. There's no fraud or dishonestly, except maybe in that hug/second groping. Four might apply, as the victim is arguing that this was a ploy to get leverage in the case. However, I understand that Levy was pretty drunk and groped a lot of women at that party, so I doubt it. 5 and 6 don't apply. Looks to me like the bar got it right the first time.

4.

Do you think aesthetic tastes are learned or innate? I've been thinking a lot about the cars I like. I find that I like the styling of luxury cars more than low end cars (although I don't like most Acura's, for some reason).

First I think, maybe it's just because those automakers spend money on the little things that make the car look nice. Then I think, maybe I just like those cars because I've been told by commercials that those are cars of status, and in reality, I don't actually like a BMW 46e body style any more than that of a boxy scion.

Then I think, no, I do like it more because of it is sleek and attractive. Then I think, maybe our preference for certain cars designs relates to our hardwired concept of beauty. Like it reminds us of the female figure or something like that. Then I think, that must be nonsense because there are truck designs I prefer to other trucks, which if anything are masculine, not feminine. Or house designs I like more than other houses, which are asexual.

Then I look at 90s cars and I remember when they were new, and I remember thinking they were kind of cool looking back in the day, but now I think they look more or less horrible. And I have this thought--maybe style is just a fad, and there is no objective way to evaluate it. Or maybe I just have more refined tastes now than then. Or maybe aesthetics are constantly marching forward much like technology, and looking back only shows us how far we've come.

5.

I think the Rand Paul controversy shows two things: 1. The media does not understand even the basics of libertarian thought and 2. it disproves Glenn Reynold's theory that Ron Paul's success came from libertarianism resonating with viewers.

6.

What do you think about cliques within a ward? We should be inclusive and extend the hand of fellowship to everyone, right? But then, we also genuinely like some people more than others. We don't have to pretend like we like all people equally, do we? It sure is a bummer if you're the one that no one likes.

Three blogs I've been reading: Aretae, Austro-Athenian Empire, and Offsetting Behaviours. The Aretae guy considers himself an off-the-charts genius. The second guy seems like the type that might annoy me with his lefty-libertarian smugness. Also I don't know what Rodrick is saying half the time.

Good Question for Elena Kagan:

On the one hand, Harvard accepts money from Saudis. Saudi Arabia, by the way, executes homosexuals, Saudi Arabia represses women, Saudi Arabia does not allow Christians or Jews to practice their religion, but Saudi money is fine. The American military didn’t have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position. And if you read what they said at the time, it was consistently focused on the military, and I just think that at a time when we have two wars, that’s a very inappropriate behavior.

Monday, May 17, 2010

Voted in our local election. I spent several hours trying to figure out who was who and who I should vote for. I even read something about each of the unopposed candidates, most of whom were judges. One judge I had an ex parte motion in front of two weeks ago, so that was an easy decision. A few reflections.

Dean Worthen (former law school dean) used to say that the way to really get people mad it to tell them what they can and can't do with their property. From that you'd think that local elections would be the most contentious as that is where most property regulation occurs. In reality, though, we pay the least attention to them. There were something like 16 positions for republican delegates on my ballot, but only 2 people ran. Most appellate court judges ran unopposed (although I started to wonder if maybe you can't run against them.) It seems like there really is a lot of room to get involved and get influence in local politics.

Voting was particularly hard because I had to familiarize myself with local issues before I could vote meaningfully for the candidates.

The best politicians were the most mealy mouthed. I had to read between the lines on their websites to figure out what they really believed in. I say they were the best because it seems like some of the most vapid writing was on the most popular candidate's pages.

Non-partisan elections are STUPID! They simply are a way to obfuscate the political leanings of the candidates, which ultimately is all you want to know. I had to find my way to a questionnaire by the two supreme court candidates before finally finding some sort of indication of the judge's political leanings.

All my effort to be an informed voter is probably a waste of time. First, its just the primary, and I live in Oregon, so none of these people are likely to be elected. Second, as we know from public choice theory, my vote doesn't actually count.

In one of his books (and I think tv news stories) John Stossel argues that government mandating airbags is an unnecessary infringement on our freedom. Apparently if you're shorter than a certain height, an airbag actually increases the risk you will be killed in a car accident. He found a lady who was terrified of this risk, but couldn't legally buy a car without an airbag or deactivate the airbag. Obviously government has run amok!

But then I got to thinking about the Tullock spike. An airbag makes you more likely to survive a crash. That means you are more likely to drive recklessly, and inflict externalities on others. And libertarians also believe in internalizing externalities. So now, I don't know what a libertarian should think about Stossel's example. Or maybe, it just further proves Stossel's point because airbags protect the vast majority of people, increasing their tendency to drive aggressively (but that would make his particular example a bad one).

It looks like the days of the federal government being limited to its enumerated powers are enumerated. My guess on why Justice Roberts joining the majority: he's thinking about the other myriads of government programs that could be challenged if he took too hard of a line of the commerce and necessary and proper clauses. This is, I think, just one of those areas where the jurisprudence is bowing to the political realities. Sadly, it looks like these cases were decided 70 years ago with the switch in time that saved nine.

I've seen Breyer and Scalia do this or a similar back and forth a couple of times now, but it's always interesting. Breyer's best arguments against originalism:

History is not always clear. (Scalia's counter: history is clear in some of the most controversial cases)

If we are looking at history, we should have 9 historians on the court.

Deriving neutral principles and applying them to today's circumstances is really hard.

A gathering backlash against the suns? or a marketing plan working perfectly?

Saw the movie De Ja Vue on TV Saturday. If you can buy into the premise, it kind of worked, but that's a big if. It also has one of those really bad, didactic scenes where the characters just blurt out every rule and premise you have to accept to believe the movie. Great movies doesn't do that.

Saturday, May 8, 2010

Lots of talk about whether this latest terrorist should be mirandized. First, I like this post by libertarian blogger, Jeffrey Miron, pointing out that Glenn Beck thinks the terrorist should be mirandized. I like how it shows how conservatives/libertarians still value individual rights, when they think the constitution actually contains the right. I think that it's interesting that Beck thinks the constitution contains the right (discussed below). I also think it's interesting how many different areas of law this question implicates (non of which I'm an expert in, so I could be misremembering the law).

War and peace powers. One argument against mirandizing is that when we are at war, the president has the power to detain the terrorist indefinitely under the war powers as an enemy combatant. No mirandizing necessary, because you don't get criminal procedure rights when you are the enemy in a war. That was kind of the issue in the Hamdi case (dealing with detentions). Do american citizens engaged in war against the U.S. get habeas rights like other citizens? What's interesting is that Thomas and Scalia came out on polar opposite sides of the question, with the court landing in the middle. Thomas said the president can hold the citizen terrorist indefinitely without review, and Scalia said that the terrorist gets full habeas corpus rights unless congress suspends the writ. Republicans have mostly adopted the Thomas view, but I think I'm on Scalia's side. (I do think that it was key that Hamdi was brought back to the U.S. though).

Fifth Amendment. Miranda has been controversial since the case was decided. While it is based on the right against self-incrimination, that the fifth amendment only bars being compelled to be a witness against yourself. Miranda, therefore, rests on the assumption that all custodial interrogations without a warning and waiver are coercive. That's what's interesting to me about what Beck said--he assumes that Miranda warnings are a constitutional right.

Standing and the Exclusionary Rule. Not giving a Miranda warning doesn't mean the guy gets off scott-free. It just means that the exclusionary rule applies to the evidence he gave in answer to the interrogation. Other evidence it still admissible. It could be well worth not giving the warning and giving up the right to use the information in court in order to get additional information from the terrorist that reveals, for example, a network of terrorist. Also, only the right holder has standing to challenge the use of the evidence, so the testimony could be used against other terrorists.

Second Interrogation. If I remember criminal procedure right, the police can get a confession, leave, come back some time later, give Miranda warnings, get a waiver, and get another confession and even though the first confession is inadmissible, the second would be admissible.

Emergency Exception. I just learned there is also an emergency exception to Miranda. I'm not sure I agree with Krauthammer that congress can create a statutory exception, however. I don't think a constitutional requirement can be overridden by statute, and whether the statute conflicts with the constitution depending on what the supreme court determines the Constitution requires. Also,while I agree that giving Miranda warnings is going to slightly increase the chance a suspect clams up, who today doesn't know their Miranda rights? I imagine the effect of Miranda warnings is very small.

In conclusion, I don't really have much of an opinion on whether terror suspects should be mirandized.

Here's a pretty good article about that Milwaukee voucher study making some of the same points we discussed a week or two ago.

At some point, the back and forth over at B v. E has to end. Still there is this one question I've been thinking about: If you distrust government why do you trust it with military power? This is basically the inverse of the question I posed: if you think your government is evil, why would you trust it with so much domestic power? I plain don't understand why, if you think government is so evil that it kills thousands of people for oil, you would trust it to teach your children 40 hours a week or to administer your healthcare system. I think if I believed government regularly started wars for oil, I'd be an anarchist.

The inverse does pose a small problem, however. If I distrust government why do I trust it with military power? A lot of libertarians actually do not trust the government with much military power. Ron Paul is one. I think Don Boudreaux is another. But they tend to think that government is evil. I'm not there. I think government is inefficient. But I do think government tends to dole out favors to the politically connected. I'm sure the Department of Defense is no exception. So why couldn't a defense contractor capture the DoD the way libertarians think other agencies are captured?

Here is why I think that government use of military power is generally better than administration of economic programs:

It isn't necessarily better. Government has a role to play in solving community action problems and raising a military is a classic community action problem. But It's not that I think government will do a good job. It's just that we won't have a military without government.

Government officials can more easily convince themselves that their friends are the most deserving of government largess. It's also easy to convince yourself that inefficient spending is good for the economy (that's one of the premises of Keynsian economics). Much of the cost of inefficient government is hidden. The cost of a inefficient government contract, handout, tariff or quota is what could have been produced in its absence. The costs are hidden and so easy to ignore. It's much harder to delude yourself into thinking a war for oil is a good thing. The cost of war are not hidden. In fact, they are certain to be big news and to directly impact citizens, who will hold politicians accountable.

The question of war is more decentralized than the question of awarding a contract--at least in the case of Iraq. That decision involved the president, the CIA, other intelligence agencies and the Senate.

Do you think it is unfair to call Obama a socialist? interesting discussion here. In the traditional sense, where government controls the means of production, yeah, it's probably not accurate. But there seems to be another sense of socialist, where you believe that government can almost always improve markets by regulating them. Seems to me Obama's a socialist under that watered-down definition. Maybe we need a better word for people, who when they look around, all they see are market failures.

I'm less of a closed-boarders guy than I used to be. But the Suns wearing their Spanish-language jerseys still annoys me.

Here are the issues that keep me from identifying as a Libertarian: foreign policy, immigration, abortion and sometimes drugs. In the Goldberg-Frum exchange, Frum asks Goldberg whether he supports seatbelt laws. I wonder if that is a good test of libertarianism. Do you support seatbelt laws? Both Frum and Goldberg do.

When I bought my house I knew it had water in the crawlspace. We've finally decided it's time to do something about it. I have four bids, and I'm tempted to go with the lowest, which is still expensive. But, the bids aren't for the same fix. Two are for a sum pump. One is for a pipe through some concrete. One is for a French drain. I don't want to do the cheapest if it doesn't fix the problem. But I'm not sure how to determine which fix is actually going to work. Any suggestions?

Sunday, May 2, 2010

My name is John and i absolutely love The Lord and metal. I've been in a few bands before, but the christian ones i was in never got anything done, and the non christian ones were awesome but the lord wasn't in it. I want to get a project going with a few guys who seriously love the lord and want to play music together. Serious christians only! don't mean to be snobby or anything, but this project will be straight up christian, not Mormon or jehovahs witness. also means not 420 friendly, no drinking, stuff like that. i need people who love Jesus christ our Savior! probably practicing a couple times a week, and needs to be here in Newberg, i can't carry gear on my motorcycle. I sing clean and screaming, as well as guitar, most likely rythym. i need another guitarist, a drummer, and maybe more! looking for musicians who can learn quick and contribute ideas often, theres no worse of a downer on a band than an inexperienced musician who doesn't know how to pick stuff up quickly. drummer needs to be in newberg or willing to transport their gear here, i can work out a practice space if need be. looking for a sound close to august burns red, as i lay dying, haste the day all mixed together. shoot me a text at 503-201-3412 or email defeatingzero@gmail.com. thanks a ton and God bless :)